4. Regina v. A.B.A. [Provincial Court of Alberta, Calgary – February 2017]

ABA & spouse were charged with possession of cannabis marijuana in an amount exceeding 3 kilograms for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.

The police initially entered their home without a warrant as a consequence of a 911 call placed by a concerned neighbour.  The concerns of the neighbour were legitimate because ABA & spouse had just been the victims of an armed home invasion.

During the course of the police “911” entry they allegedly observed large quantities of marijuana in various locations, scales, packaging materials, etc., etc., etc.  As a consequence of those observations the police secured the premises, obtained a warrant and re-searched the home under the purported authority of that document.  During the course of this latter search, the police also seized a relatively large sum of money resulting in an additional charge of possessing proceeds of crime contrary to section 354 of the Criminal Code.

At preliminary inquiry Patrick Fagan was successful in having all charges against ABA’s spouse completely withdrawn.  ABA was committed to stand trial on both charges in the Court of Queen’s Bench of Alberta.

ABA’s primary objective was to avoid the imposition of a jail term. Unfortunately, as a result of profound changes to the law back in 2012 jail became mandatory (no exceptions) for anyone convicted of possession of marijuana for the purpose of trafficking in an amount exceeding 3 kilograms.  To complicate matters, ABA waived his right to a lawyer and provided the police with a detailed inculpatory statement (never a good idea) in which he admitted to selling marijuana.

On the verge of Queen’s Bench trial proceedings Patrick Fagan managed to convince the Crown of the relative strength of his constitutional position and argument germane to precisely what amount of cannabis marijuana ABA (as opposed to other occupants of the residence) was actually in possession of.

Bottom Line: In the final analysis, the Crown agreed to accept a plea of guilty to possession for the purpose of trafficking UNDER 3 kilograms.  This opened the door to resolving this prosecution without the imposition of a jail term.  The matter was resolved by way of a conditional sentence order (ie: No jail) of 9 months.